The Trump administration recently announced that it was looking for a way to challenge the increasingly popular practice of federal district courts issuing nationwide injunctions against the Federal government. Like many matters of federal civil procedure, this is the sort of issue that traditionally doesn’t grab many headlines, but could have significant effects going forward. To understand those effects, a brief civil procedure primer is necessary.
In most cases, an injunction is an order entered by a district judge to maintain the status quo and prevent injuries while the merits of the case are litigated. For example, in a real estate case, the Judge may enter a preliminary injunction to prevent a historically significant building from being demolished until a full trial on the merits can be argued by the real estate attorneys.
In cases against the government, an injunction usually involves an order preventing the government from enforcing a challenged law or continuing a challenged practice against the plaintiff until the court can determine whether the law or action is constitutional. After the merits of the case are decided, the injunction can be lifted or, if the government action is found unconstitutional, the injunction can be made permanent.
Because sovereign immunity often prevents individuals injured by unconstitutional actions from receiving monetary damages from the government after injuries occur, injunctions are the primary way that civil rights plaintiffs receive relief. In many situations, a victory in a civil rights lawsuit is limited to an injunction from the court demanding that the government stop violating the Constitution. None of this is controversial.
Starting in the later years of the Obama administration, however, Texas began to test a new theory. The Texas Attorney General began suing the Obama administration in federal district courts in Texas and asking the district courts there to issue nationwide injunctions against then President Obama’s policies. In recent years, states with democratic attorney generals have borrowed from the Texas playbook by seeking nationwide injunctions against the Trump administration from district courts that they view as being favorable to their cause.
The theory behind these injunctions is straightforward. A federal district court has jurisdiction over the parties before it. Thus, in a case against the President, the district court has jurisdiction to issue an injunction against the President demanding that he stop enforcing a challenged law or policy.
So far, so good. But there is a wrinkle. District courts typically only have jurisdiction over the district in which they reside. For example, a decision by a court in the Eastern District of California has no binding effect on a judge in Southern California, much less districts courts in Texas or Wisconsin. But because the President has authority to act nationwide, an injunction entered against the President would effectively have national scope, well outside of a district court’s traditional jurisdiction. These injunctions can be appealed, of course, but appeals take time. While those appeals play out, the district court opinion is binding. Hence the controversy.
This growing trend has caused a backlash. Critics of the practice point out that it may violate the Constitution for a single district judge in one state to be able to change national policy—a privilege typically reserved for the Supreme Court. These critiques have some merit.
But other critics seem to go further, arguing that a district court’s power to enter an injunction should be limited not only to its regional jurisdiction, but to the parties actually before it. In other words, if Joe Smith challenges the constitutionality of a law and prevails, the injunction against the government should be limited to preventing future actions against Joe Smith—the government can continue to enforce its unconstitutional law against everyone else, unless and until those individuals also sue and prevail.
That approach would effectively neuter constitutional litigation. Under that approach, each child at the segregated school at issue in Brown would have to file a separate lawsuit challenging segregation, before the holding in Brown would apply to them. That’s not only inefficient, it’s wrong.
The recent rash of nationwide injunctions raises interesting constitutional concerns that must be addressed. But courts should be careful that in addressing those concerns that they don’t throw the baby out with the bathwater.